Citation Nr: 0210284
Decision Date: 08/22/02 Archive Date: 08/29/02
DOCKET NO. 00-20 526A ) DATE
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THE ISSUE
Whether a March 15, 1977 decision of the Board of Veterans'
Appeals (Board), which denied a compensable disability rating
for residuals of a fracture of the sternum, should be revised
or reversed on grounds of clear and unmistakable error (CUE).
REPRESENTATION
Moving party represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Theresa M. Catino, Counsel
INTRODUCTION
The veteran served on active military duty from March 1951 to
December 1952 and from August 1955 to August 1958.
In October 2000, the veteran, through his representative,
filed a motion in which he asked that that part of the
Board's March 15, 1977 decision which had denied a
compensable disability rating for the service-connected
residuals of a fracture of his sternum be revised or reversed
on grounds of clear and unmistakable error. See 38 U.S.C.A.
§ 7111 (West Supp. 2001); 38 C.F.R. § 20.1400 (2001). In
February 2001, the Board denied the veteran's motion.
Thereafter, the veteran appealed the Board's denial of his
CUE claim to the United States Court of Appeals for Veterans
Claims (Court). In May 2002, the Court rendered a decision
that reversed the Board's February 2001 determination which
had found no CUE in the March 15, 1977 Board denial of a
compensable disability rating for the service-connected
residuals of a fracture of the veteran's sternum. Also in
May 2002, the Court remanded the matter to the Board to
revise the 1977 Board decision on the basis of CUE. In June
2002, judgment was entered on the Court's decision.
Accordingly, the veteran's case has been returned to the
Board for action consistent with the Court's May 2002
decision. The following decision effectuates the Court's
determination on the veteran's CUE motion.
Additionally, in a March 2001 statement, the veteran raised
the issues of entitlement to service connection for
post-traumatic stress disorder, bilateral hearing loss,
tinnitus, and residuals of frostbite of both feet (a cold
weather injury) on a direct basis (as a result of his combat
service in Korea); entitlement to service connection for left
hip and left knee disabilities on a secondary basis;
entitlement to a disability evaluation greater than
20 percent for the service-connected residuals of a
compression fracture at T-12 with lumbar spondylosis; and
entitlement to a disability rating greater than 10 percent
for the service-connected residuals of multiple foreign
bodies of the right side of Muscle Group XIII. These claims
are not inextricably intertwined with the current issue
before the Board and are, therefore, referred to the Los
Angeles, California Regional Office (RO) of the Department of
Veterans (VA) for appropriate action.
FINDINGS OF FACT
1. By a decision entered on March 15, 1977, the Board denied
the issue of entitlement to a compensable disability rating
for service-connected residuals of a fracture of the
veteran's sternum.
2. The statutory and regulatory provisions in existence at
the time of the Board's March 15, 1977 denial were not
correctly applied.
3. The Board's March 15, 1977 decision contains an error
that, had it not been made, would have manifestly changed the
outcome of the claim.
CONCLUSION OF LAW
The criteria for the revision of the Board's March 15, 1977
decision, which denied a compensable disability rating for
the service-connected residuals of a fracture of the
veteran's sternum, on the grounds of CUE have been met. 38
U.S.C.A. § 7111 (West Supp. 2001); 38 C.F.R. §§ 20.1400,
20.1401, 20.1403, 20.1404 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Background
Service medical records reflect hospitalization for several
days for treatment for a simple fracture at the junction of
the manubrium and the body of the veteran's sternum in June
1957 when a radar tower fell and pinned him to the ground.
Final diagnosis included, in pertinent part, an apparent
manubrial separation on the right with no change. The
separation examination conducted in June 1958 demonstrated
that the veteran's chest was normal.
In August 1958, the veteran was discharged from active
military duty. In December 1958, he underwent a VA
examination, at which time he complained of chest pains upon
sitting and especially bending over. He also reported having
sustained a simple fracture between the body of his sternum
and the sternum manubrium during service in 1957 when a radar
tower fell and "jack knifed" him and jammed his chest
against his knee. A physical examination of the veteran's
chest demonstrated the presence of a nontender, prominent,
and approximately three-inch long and one-and-a-half inch
wide bone ridge at the level of the junction of the sternum
body and manubrium. The examiner noted that the bone ridge
showed no crepitus on pressure. X-rays taken of the
veteran's chest were essentially normal. The examiner
diagnosed, in pertinent part, a symptomatic healed fracture
of the sternum.
Based on this evidence, the RO, by a December 1958 rating
action, granted service connection for symptomatic residuals
of a fracture of the veteran's sternum. In addition, the RO
awarded a 10 percent evaluation to this disability, effective
from August 30, 1958, the day following the veteran's
separation from active military duty. In January 1959, the
RO notified the veteran of this award.
Subsequently, in December 1975, the veteran underwent another
VA examination, at which time he complained of a sore chest
bone and pains over his sternum. A physical examination
demonstrated pain to palpation or percussion over the
thoracic spine, active range of motion of all upper extremity
joints which was within normal limits, and pain over the
sternum during abduction of both shoulders. X-rays taken of
the veteran's lateral sternal area showed mild hypertrophic
changes involving the lower thoracic spine; deformity at the
level of the sternozyphoid articulating area, which the
radiologist explained was probably old and post-traumatic in
origin; and some displacement posteriorly of the zyphoid
region. The examiner diagnosed, in pertinent part, a
fracture of the sternum.
Based on this evidence, the RO, by a January 1976 rating
action, decreased the disability evaluation assigned to the
service-connected residuals of a fracture of the veteran's
sternum from 10 percent to a noncompensable level, effective
from May 1, 1976. Also in January 1976, the RO notified the
veteran of this reduction.
Following the January 1976 notification, the veteran
perfected a timely appeal with respect to the rating assigned
to this service-connected disability. Specifically, the
veteran asserted that the disability evaluation assigned to
the service-connected residuals of a fracture of his sternum
should not have been reduced. He explained that his sternum
was sensitive to touch and that his chest ached when he
touched his right shoulder with his left hand.
According to pertinent VA medical evidence received during
that appeal, in February 1976, the veteran sought treatment
for complaints of pain in his left chest without radiation.
He reported having sustained a separated sternal bone in 1958
when a radar antenna fell on him. A physical examination
demonstrated tenderness along the costo-sternal function on
the left. X-rays taken of the veteran's sternum and adjacent
rib cage several weeks later in March 1976 showed normal bony
structures with no evidence of any bony changes and with no
fractures or fracture deformity visualized in the
corresponding region.
Thereafter, in July 1976, the veteran underwent another VA
examination, at which time he complained of pains in his
breast bone. He reported that, during service in 1955, he
had fractured his sternum when a radar antenna stack fell on
him. A physical examination demonstrated pain to palpation
over the thoracic spine. X-rays taken of the veteran's
sternum showed some irregularity of the anterior surface of
the sternum proximally, which the radiologist explained may
have represented an area of previous fracture and of
hypertrophic bone formation. The remainder of the sternum
appeared to be within normal limits. The examiner diagnosed,
in pertinent part, an old healed fracture of the sternum.
In a March 15, 1977 decision, the Board, after considering
the relevant in-service and post-service evidence of record,
denied the issue of entitlement to a compensable rating for
the service-connected residuals of a fracture of the sternum.
According to this previous decision, the Board acknowledged
that this pertinent evidence showed that the
service-connected residuals of a fracture of the veteran's
sternum were manifested by some irregularity of the surface
of the sternum and by the veteran's complaints of breastbone
pain. However, the Board also determined that the relevant
evidence of record demonstrated that this service-connected
disability was essentially static and that the objective
findings failed to indicate a significant disability
warranting a compensable rating.
Subsequently, in October 2000, the veteran, through his
representative, filed a statement alleging CUE in the Board's
March 1977 decision. In essence, the veteran, through his
representative, asserted in this document that the Board, in
March 1977, erred in failing to address the proper issue of
the validity of the RO's reduction in the evaluation assigned
to his service-connected sternum disability and in failing to
discuss the applicability of the provisions of 38 C.F.R.
§ 3.344 regarding rating reductions.
Pertinent Laws And Regulations
CUE is a very specific and rare kind of error. 38 C.F.R.
§ 20.1403(a) (2001). It is the kind of error, of fact or
law, that when called to the attention of the later reviewers
compels the conclusion, to which reasonable minds could not
differ, that the result would have been manifestly different
but for the error. Id. See also, Fugo v. Brown, 6 Vet.
App. 40, 43 (1993). Generally, either the correct facts, as
they were known at the time, were not before the Board, or
the statutory and regulatory provisions extant at the time
were incorrectly applied. 38 C.F.R. § 20.1403(a) (2001).
Any party to a Board decision can make a motion to have the
decision revised or reversed on the grounds of CUE. 38
U.S.C.A. § 7111 (West Supp. 2001); 38 C.F.R. § 1400(a),
20.1401(b) (2001). In order to prevail on such a motion, it
must be established that there was an error in the Board's
adjudication and that the error was such that, had it not
been made, the outcome of the adjudication would have been
manifestly different. 38 C.F.R. § 20.1403(c) (2001). If it
is not clear that a different result would have ensued, the
error complained of cannot be "clear and unmistakable."
Id.
A disagreement with how the Board weighed or evaluated the
facts in a particular case is not CUE. 38 C.F.R.
§ 1403(d)(3) (2001). See also, Baldwin v. West, 13 Vet.
App. 1, 5 (1999) and Damrel v. Brown, 6 Vet. App. 242, 246
(1994) (in which the Court held that allegations that
previous adjudications had improperly weighed and evaluated
the evidence could never rise to the stringent definition of
CUE). Similarly, the Court has held that VA's breach of its
duty to assist cannot form a basis for a claim of CUE. See,
Tetro v. Gober, 14 Vet. App. 100, 109 (2000) and Caffrey
v. Brown, 6 Vet. App. 377, 382 (1994).
If a party wishes to have a motion for CUE considered on the
merits, he or she must set forth clearly and specifically the
alleged error of fact or law in the Board decision, the legal
or factual basis for such allegations, and the reason that
the result would have been manifestly different but for the
alleged error. 38 C.F.R. § 20.1404(b) (2001). Non-specific
allegations of failure to follow regulations or failure to
give due process, or any other general, non-specific
allegations of error, are insufficient to satisfy these
requirements, id., and motions that fail to satisfy these
requirements may be dismissed without prejudice to re-filing.
See, Disabled American Veterans v. Gober, 234 F.3d 682,
698-699 (Fed. Cir. 2000), reh'g denied, Nos. 99-7061,
99-7071, 99-7084, 99-7085, 2001 U.S. App. LEXIS 1314 (Fed.
Cir. Jan. 2, 2001) (invalidating 38 C.F.R. § 20.1404(b) to
the extent that it allowed insufficiently pled motions to be
denied without further opportunity to re-file).
Analysis
As previously noted in this decision, the RO, by a December
1958 rating action, initially granted service connection for
symptomatic residuals of a fracture of the veteran's sternum
and awarded a 10 percent evaluation to this disability,
effective from August 30, 1958, the day following the
veteran's separation from active military duty.
Thereafter, by a January 1976 rating action, the RO decreased
the disability evaluation assigned to the service-connected
residuals of a fracture of the veteran's sternum from
10 percent to a noncompensable level, effective from May 1,
1976. Following notification of this decrease, the veteran
repeatedly asserted his objections to the RO's reduction of
the compensable 10 percent rating that had been previously
assigned to this disorder for almost 18 years.
In the March 15, 1977 decision, the Board denied the issue of
entitlement to a compensable disability rating for the
service-connected residuals of a fracture of the sternum.
Significantly, however, in view of the fact that a
compensable rating of 10 percent had been in effect for
almost 18 years before the RO had decreased the evaluation to
a noncompensable level and in view of the veteran's repeated
assertions following this decrease that the reduction was
improper and not supported by the evidence of record, the
Board concludes that the issue properly before the Board in
March 1977 was the claim of whether the reduction in the
rating assigned to the service-connected residuals of a
fracture of the sternum from 10 percent to zero percent was
proper.
As the issue properly before the Board at the time of the
March 1977 decision was the propriety of the reduction in the
rating assigned to the service-connected residuals of a
fracture of the veteran's sternum, the provisions of 38
C.F.R. § 3.105(e) were applicable. Specifically, at the time
of the Board's March 1977 decision, 38 C.F.R. § 3.105(e)
provided that, where the reduction in evaluation of a
service-connected disability or employability status was
considered warranted and the lower evaluation would have
resulted in a reduction or discontinuance of compensation
payments currently being made, rating action would be taken.
The reduction would be made effective the date last day of
the month in which a 60-day period from the date of notice to
the payee expires. The veteran would be notified at his or
her latest address of record of the action taken and
furnished detailed reasons therefor, and would be given
60 days for the presentation of additional evidence. 38
C.F.R. § 3.105(e) (1976).
In the January 1976 notice of the rating action dated in the
same month (which reduced the evaluation for the veteran's
service-connected sternum disability from 10 percent to zero
percent, effective from May 1976), the RO informed the
veteran of his opportunity to submit additional evidence
tending to show that the reduction should not be made. In
particular, the RO cited such helpful evidence as a statement
from a physician who had recently treated or examined him and
who could provide detailed findings relating to his
service-connected disorder. The RO explained that, if no
such additional evidence were received within 60 days from
the date of the notification letter, the agency would
effectuate his reduction as indicated.
In response to this letter, the veteran perfected a timely
appeal with respect to the issue of the propriety of the
reduction of the rating for the service-connected residuals
of a fracture of his sternum. Additionally, the veteran
cited sources of medical treatment that he had received for
this service-connected disability. The RO obtained these
records, and also accorded the veteran a VA examination prior
to the Board's March 1977 decision.
A complete and thorough review of the Board's March 1977
decision indicates that the provisions of 38 C.F.R.
§ 3.105(e) were not considered. However, as noted, the RO
complied with these provisions. Thus, even if the Board had
considered them at the time of its March 1977 decision, the
outcome of the Board's determination at that time would not
have been manifestly different. See, 38 C.F.R. § 20.1403(c)
(2001) (which stipulates that, in order to prevail on a
motion of CUE, it must be established that there was an error
in the Board's adjudication and that the error was such that,
had it not been made, the outcome of the adjudication would
have been manifestly different).
Additionally, as the compensable rating for the veteran's
service-connected sternum disability was in effect for almost
18 years (from August 1958 to May 1976), the provisions of 38
C.F.R. § 3.344 were applicable. See, 38 C.F.R. § 3.344(c)
(1976) (which stipulates that the provisions of paragraphs
(a) and (b) of this section applied to ratings which had
continued for long periods at the same level (5 years or
more)). In this regard, the Board notes that the provisions
of 38 C.F.R. § 3.344, at the time of the Board's March 1977
decision, provided that
[r]ating agencies will handle cases
affected by change of medical findings or
diagnosis, so as to produce the greatest
degree of stability of disability
evaluations consistent with the laws and
Veterans Administration regulations
governing disability compensation and
pension. It is essential that the entire
record of examinations and the
medical-industrial history be reviewed to
ascertain whether the recent examination
is full and complete, including all
special examinations indicated as a
result of general examination and the
entire case history. This applies to
treatment of intercurrent diseases and
exacerbations, including hospital
reports, bedside examinations,
examinations by designated physicians,
and examinations in the absence of, or
without taking full advantage of,
laboratory facilities and the cooperation
of specialists in related lines.
Examinations less full and complete than
those on which payments were authorized
or continued will not be used as a basis
of reduction.
Ratings on account of diseases subject to
temporary or episodic improvement . . .
will not be reduced on any one
examination, except in those instances
where all the evidence of record clearly
warrants the conclusion that sustained
improvement has been demonstrated.
. . . Moreover, though material
improvement in the physical or mental
condition is clearly reflected the rating
agency will . . . consider . . . whether
the evidence makes it reasonably certain
that the improvement will be maintained
under the ordinary conditions of life.
38 C.F.R. § 3.344(a) (1976).
A complete and thorough review of the March 1977 decision
indicates that the Board did not consider the provisions of
38 C.F.R. § 3.344(a). In this regard, the Board notes that
the December 1958 VA examination, which the RO used to award
the 10 percent rating for the veteran's service-connected
sternum disability in the December 1958 rating action,
included his complaints of chest pains when sitting and
especially when bending over as well as objective evaluation
findings of the presence of a nontender, prominent, and
approximately three-inch long and one-and-a-half inch wide
bone ridge at the level of the junction of the sternum body
and manubrium without crepitus on pressure and with
essentially normal radiographic findings but with a diagnosis
of a symptomatic healed fracture of the sternum.
The VA examination subsequently conducted in December 1975,
which was used as the basis of the RO's January 1976
reduction in the rating assigned to the veteran's
service-connected sternum disability from 10 percent to a
noncompensable level, included the veteran's complaints of
sternum (or chest) pains as well as objective evaluation
findings of pain to palpation or percussion over the thoracic
spine, pain over the sternum during abduction of both
shoulders, deformity at the level of the sternozyphoid
articulating area which was probably old post-traumatic in
origin (by radiographic films), some displacement posteriorly
of the zyphoid region (also by radiographic films), and a
diagnosis of a fracture of the sternum.
According to the additional pertinent medical evidence dated
prior to May 1976, the effective date of the rating
reduction, a February 1976 VA outpatient treatment record
reflected the veteran's continued complaints of left chest
pain without radiation as well as objective evaluation
findings of tenderness along the left costo-sternal function.
Additionally, X-rays taken of the veteran's sternum and
adjacent rib cage several weeks later in March 1976 showed
normal bony structures with no evidence of any bony changes
and with no fractures or fracture deformity visualized in the
corresponding region.
Thus, the medical evidence available at the time of the RO's
December 1958 grant of service connection for residuals of a
fracture of the sternum and award of a 10 percent rating for
this disability reflected the presence of a symptomatic
disorder manifested by complaints of chest pains but by
essentially normal findings on physical and radiographic
examination. The medical evidence available at the time of
the RO's 1976 reduction in this rating from 10 percent to
zero percent continued to include a symptomatic disability
manifested by complaints of chests pains but also by
objective evaluation findings of pain to palpation or
percussion over the thoracic spine, tenderness along the left
costo-sternal function, pain over the sternum during
abduction of both shoulders, deformity at the level of the
sternozyphoid articulating area found to be probably old and
post-traumatic in origin, and some displacement posteriorly
of the zyphoid region.
Clearly, this medical evidence does not demonstrate an
improvement in the service-connected residuals of a fracture
of the veteran's sternum. In fact, the medical evidence used
in support of the reduction in this disability's rating shows
an increase in the symptomatology associated with the
disorder. In particular, the medical evidence used to
support the grant of the 10 percent rating included only
subjective complaints of chest pain, while the medical
records used as a basis for the reduction to a noncompensable
level included such subjective complaints as well as
objective findings of pain and tenderness of the sternum,
deformity at the level of the sternozyphoid articulating area
(which was found to be probably old and post-traumatic in
origin), and some displacement posteriorly of the zyphoid
region. Without evidence of improvement in this
service-connected disability, a reduction in the rating
assigned to the disorder was not proper. See, 38 C.F.R.
§ 3.344(a) (1976).
Significantly, therefore, if the Board had considered the
provisions of 38 C.F.R. § 3.344(a) (1976) at the time of its
March 1977 decision, the outcome of the Board's determination
at that time would have been manifestly different. In other
words, consideration of the provisions of 38 C.F.R.
§ 3.344(a) at the time of the Board's March 1977 decision
would have resulted in a finding that the RO's 1976 reduction
of the rating assigned to the veteran's service-connected
sternum disability was improper. See, 38 C.F.R. § 20.1403(c)
(2001) (which stipulates that, in order to prevail on a
motion of CUE, it must be established that there was an error
in the Board's adjudication and that the error was such that,
had it not been made, the outcome of the adjudication would
have been manifestly different). As such, the Board must
conclude that the CUE was committed in its March 1977 denial
of a compensable rating for this service-connected
disability.
The Board acknowledges that, on November 9, 2000, the
Veterans Claims Assistance Act of 2000 (VCAA) became
effective. See, 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West Supp. 2001). In particular, this law
eliminates the concept of a well-grounded claim and redefines
the obligations of VA with respect to the duty to notify and
to assist. This change in the law is applicable to all
claims filed on or after the date of enactment of the VCAA,
or filed before the date of enactment but not yet final as of
that date. VCAA, Pub. L. No. 106-475, § 7(a), 114 Stat.
2096, 2099-2100 (2001), 38 U.S.C.A. § 5107 note (Effective
and Applicability Provisions) (West Supp. 2001). See also,
66 Fed. Reg. 45,620-32 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a))
and Holliday v. Principi, 14 Vet. App. 280 (2001).
In deciding the veteran's CUE motion, the Board has
considered the applicability of the VCAA. Importantly, the
Court has held that the VCAA is not applicable to motions for
revision of a Board decision on the grounds of CUE. Livesay
v. Principi, 15 Vet. App. 165 (2001) (en banc).
ORDER
Clear and unmistakable error having been found in the Board's
March 1977 decision, the moving party's 10 percent disability
evaluation for his service-connected residuals of a fracture
of the sternum is restored, effective the date of the
reduction, May 1, 1976, subject to the laws and regulations
governing the payment of monetary benefits.
A. BRYANT
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597B that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? In the section entitled "Appeal to the United States
Court of Appeals for Veterans Claims," you are no
longer required to file a copy of your Notice of Appeal
with VA's General Counsel.
? In the section entitled "Representation before VA,"
you no longer need to have filed a "notice of
disagreement ... that led to the decision the Board has
just reviewed for CUE ... on or after November 18, 1988"
as a condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.